Unlawful Mischief

Reporter’s Note

Unlawful mischief is a specific intent crime.  The State must prove that the defendant caused damage purposely, but no showing of malice is required.  See State v. Lyddy, 2025 VT 1, ¶¶ 30–37 (reversing unlawful mischief conviction where instruction erroneously allowed jury to find lower standard of intent than required by statute, and error was not harmless); State v. Jackowski, 2006 VT 119, ¶ 6, 181 Vt. 73 (“The [Model Penal] Code does not differentiate between ‘with intent’ and ‘purposely’; instead, it uses the two terms interchangeably, explaining in its definitions that ‘ “intentionally” or “with intent” means purposely.’ ”) (quoting MPC § 1.13(12)); State v. Patch, 145 Vt. 344, 351 (1985) (malice not required), abrogated on other grounds by Jackowski, 2006 VT 119, ¶ 7.  Note that, to the extent Patch suggests that a mental state of knowingly is sufficient, see 145 Vt. at 352,  it is likely no longer good law. See Jackowski, 2006 VT 119, ¶ 7.

The several subsections of the statute, 13 V.S.A. § 3701, relate to the amount of the damage inflicted and the penalties that may be imposed.  The word “value” refers to the amount of the damage inflicted, not the value of the property which is damaged.  State v. Breznick, 134 Vt. 261, 266 (1976).  According to the statutory language, § 3701(c) applies to damages “not exceeding $250.00,” but the committee concludes that § 3701(c) actually applies to damages “of some monetary value.”  This interpretation is supported by Breznick, and by reading the various subsections in pari materia. The State need not prove that the value of the damages did not exceed $250, and the instructions need not mention the figure of $250. See Breznick, 134 Vt. at 266 (“Under the section dealing with minimal damage value, . . . proof of the exact value of the damage done is not required to sustain a conviction.”).  Where the defendant is charged under § 3701(c), the State may not amend the information during trial to a charge that the damages exceeded $250, under § 3701(b).  State v. Verge, 152 Vt. 93 (1989).

Note also that the definition of “damage” is broad. “The language of the statutory prohibition in 13 V.S.A. § 3701(c) identifying ‘any damage’ reflects the Legislature’s intent to broadly prohibit actions that cause injury or impairment to property.” State v. Wells, 2025 VT 5, ¶ 9. “Damage” may include making property dirty or unsanitary and thus temporarily unusable. See id. ¶¶ 6–12 (jury instructions were consistent with broad definition, and evidence that defendant urinated, spat, and rubbed his genitals on various parts of holding cell, necessitating closure of cell and incurring $75 in clean-up costs, was sufficient to result in “substantial impairment” to the cell’s use and, thus, constituted “any damage” under § 3701(c)).

Subsection 3701(d) applies to damages caused “by means of an explosive.”  The definition of “an explosive” derives from 13 V.S.A. § 1603(2).